Suri Ratnapala enters Debate on the Control of FB and Other Such ‘Engines’

Suri Ratnapala, in The Australian, 2 February 2021, where the title reads thus “Proof of life on social media to screen out evils” …. with highlighting emphahsis imposed by The Editor, Thuppahi

Big Tech companies occupy a unique position within the online economy that has few parallels in the offline world. The online economy is a mind-bogglingly complex system of interdependent providers, technologies and regulations. But we do know two things about this industry. First, it has given billions of people, including the poorest in the world, instant access to information and means of communication. We also know the online system is a public space where evil happens, including child abuse, terrorism and misinformation that harms liberal democratic institutions.

Tech firms are under growing pressure from the left and right. Conservatives complain their viewpoints are suppressed, and the left accuses them of being too permissive. Both sides want reform but disagree on the goals and means. The totalitarian option is effective, where the state controls who delivers online services and what they may deliver. That is unthinkable in a free society. Heavy-handed state regulation will destroy the industry. But democracies cannot afford inertia.

Two questions arise: who may speak, and what may be spoken. The first concerns the power of tech firms to deplatform individuals. The second concerns content moderation that stretches from spam filtering to crime blocking, privacy protection and political censorship. These questions are interrelated. Twitter and Facebook censored some of Trump’s postings before he was booted out after inflaming the mob that ­attacked the Capitol.

In the offline economy, we have choices that we lack online. I can find another barber, or grocer, or doctor if I am unhappy with the service I get. I can switch TV channels, radio stations and newspapers. Migration is not so easy within social media. Online services operate within a web of “live” interconnections. A single click may activate a dozen service providers from Facebook et al to financial institutions, payment processors, content moderators, advertisers, infrastructure providers and regulators. This interdependence creates peer pressure that leads to a common culture, which at this point leans left. This consensus could lead to users being ostracised as Trump is by numerous platforms.

The centuries-old common carrier law may be used to deal with this problem, as the classical liberal scholar Richard Epstein has proposed. A common carrier offers its services to the general public, hence cannot discriminate or exclude persons or goods except on legal grounds. Internet service providers are common carriers under US, Australian and other national laws. They must observe network neutrality. This law can be extended, if they are not already, to firms that use the infrastructure, such as Facebook, Twitter and Google. This would mean a person has legal remedies for being booted out, including ­injunctive relief and damages.

As to what can be said, Facebook et al face two kinds of complaints. One sort is about harm by censorship and the other about harm by non-censorship. A common carrier has no duty to carry dangerous items or take undue risk. In the US, the second class (those harmed) cannot sue the social media firm which, under s. 230 of the Communications Decency Act, is deemed not to be the publisher or speaker of content. But victims can sue the authors if they can be identified. The worst offenders, though, speak through fake accounts and pseudonyms. Facebook et al employ armies of moderators at high costs. Facebook’s 2020 White Paper appeals for regulatory guidance, proposing that “procedural accountability regulations could include, at a minimum, requirements that companies publish their content standards, provide avenues for people to report to the company any content that appears to violate the standards, respond to such user reports with a decision, and provide notice to users when removing their content”.

New US regulations will not help victims while s. 230 remains. Respected IT analysts on the left and right think the revision of s. 230 will doom the internet as we know it. A more immediate and impactful reform is to require social media speakers to reveal their identity and expose themselves to the processes of the law. Facebook requires proof of identity in suspicious cases, as does Google for certain transactions. “Know your customer” is a Wall Street motto that makes equal sense in the social media economy. Suing these miscreants might be far less rewarding than going after the tech firms. But it will be a net gain for society if internet abuse is lessened by firms adopting this simple practice that strengthens the rule of law and public safety.

Suri Ratnapala is Emeritus Professor of Public Law at the University of Queensland.